Judgment Text

G.S. Kulkarni, J.

1. This Writ Petition under Article 226 of the Constitution of India challenges the order of detention dated 27.3.2015 passed by respondent No.1 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'the COFEPOSA') preventive detaining one Burhan Fakhruddin Khatumdi (for short 'the detenu'). The detention order has been passed to prevent the detenu from indulging in smuggling of goods in future. The petitioner is the brother-in-law of the detenu.

2. The factual background which according to the detaining authority forms the basis to pass the impugned detention order is that an intelligence was received by the Officers of the Directorate of Revenue Intelligence (DRI), Mumbai, that two passengers by name Piyush Jasraj Soni and Smt.Sakina Barafwala who were holding Indian passport would arrive by Oman Air Flight from Muscat on 22.1.2015. These passengers would be carrying foreign marked gold bars and they would be attempting to smuggle the same into the country without declaring the same to the Customs Authorities. On this information, these passengers on their arrival were apprehended by the Customs Officials at the Customs Arrival Hall at the Mumbai International Airport. The examination of their baggage in the office of the Superintendent of Customs revealed that the bags contained gold bars with foreign marking. They had earlier refused to declare the gold to the Customs Authorities. There was also a personal search of Mr.Piyush Jasraj Soni which resulted in recovery of two silver coloured bracelets and one silver coloured heavy chain. Mr.Piyush Soni admitted that these were articles of gold, however, they were silver plated. The weight of these articles was about 435 gms. On inquiry with these persons, they revealed the name of the detenue to whom that gold was to be ultimately handed over. The total value of the gold bars sezied weighing 6 kg., was valued about Rs.1,49,89,380/- and the value of the bracelet and chain was Rs.10,86,730/-. Similarly, the examination of the baggage of the other passenger Smt.Sakina Barafwala had revealed the discovery of documents pertaining to purchase of said gold at Dubai and a letter of no objection issued by the Jewellers to the Duty Officer, Dubai Police to carry the gold. A personal search of Smt.Sakina also resulted in recovery of two metallic bracelets of silver colour which she admitted to be of gold and plated with silver and same were handed over to her by one person in Dubai which she informed were to be handed over to the detenu. The weight of the said bracelet was 235 gms. Valued at Rs.5,87,084/-. A statement of Mr.Piyush Jasraj Soni as also the statement of one Mr.Siddhesh Mohan Patil who was the employee of Air India as a Flight Purser was also recorded who had agreed to clear the gold from the Airport. These were recorded under Section 108 of the Customs Act A statement of the detenue was recorded on 22.1.2015. The detaining Authority has stated that certain admissions were elicited from the detenu as regards the gold which was sought to be smuggled. Also the detenu had identified Mr.Piyush Soni, Smt.Sakina Barafwala and Mr.Siddhesh Patil and these persons also identified the detenu. Mr.Piyush Soni, Mr.Siddhesh Patil filed their retraction before the Additional Chief Metropolitan Magistrate on 23.1.2015. The rebuttal to the retraction was filed by DRI on 5.2.2015. Thereafter, the detenu filed a bail application. The bail application was heard on 13.2.2015 and by order dated 18.2.2015 the learned Metropolitan Magistrate rejected the bail application and the remand was extended upto 4.3.2015. Again a bail application was moved before the Sessions Court and the same was heard on 27.2.2015. The Sessions Court granted bail to the detenu. Thereafter, a Miscellaneous Application No.569 of 2015 was moved by the detenu for a cash bail which was opposed by the DRI and the said application was ultimately withdrawn by the detenu. The bail granted on 27.2.2015 was availed of by the detenu. The DRI had filed a Miscellaneous Application dated 2.3.2015 in Bail Application No.553 of 2015 before the Sessions Court seeking imposing of a condition on the detenu for attendance at DRI office. The said application filed by the DRI was rejected by the Court on 4.3.2015. An application was thereafter moved by the Detenu on 9.3.2015 seeking permission from the Court of the learned Metropolitan Magistrate to travel abroad. This application was opposed by the Sponsoring Authority by filing a reply dated 13.3.2015. The said application, however, came to be granted by an order dated 19.3.2015 and the detenu was permitted to travel abroad. The detention order, thereafter, came to be passed on 27.3.2015.

3. The learned Counsel appearing on behalf of the petitioner has urged several grounds to challenge the impugned order of detention. The first ground being urged on behalf of the petitioner is that there is non application of mind on the part of the detaining Authority to the vital documents namely the application filed by the detenu before the learned Metropolitan Magistrate seeking permission to go abroad, the reply dated 13.3.2015 to the said application filed by the Sponsoring Authority. Learned Counsel for the petitioner submits that these documents are referred in the Index of the documents as supplied to the petitioner at Item Nos.78 and 79 and were available for consideration of the detaining Authority. Learned Counsel for the petitioner submits that on this application of the detenu, the learned Metropolitan Magistrate had passed an order dated 19.3.2015 permitting the detenu to go abroad. Learned Counsel for the petitioner submits that there is no reference whatsoever in the grounds of detention as regards the said application filed on behalf of the detenu, the reply filed by the Sponsoring Authority and the order passed by the learned Metropolitan Magistrate. It is submitted that the order passed by the learned Metropolitan Magistrate permitting the detenu to go abroad was a vital document, being an order passed by the Court having competent jurisdiction and the same could have weighed the mind of the detaining Authority one way or the other while arriving at the subjective satisfaction. The detaining Authority, however,has neither referred nor relied on the said order. The said order has not been supplied to the detenu alongwith the grounds of detention. It is, therefore, submitted that the failure to refer and rely and consider the said order passed by the learned Metropolitan Magistrate has vitiated the subjective satisfaction arrived at by the detaining Authority for want of considering the vital material as also on this count the detenu was deprived of his right to make an effective representation at an earliest opportunity. The grounds as raised in the Writ Petition in asserting the above contentions are grounds (H) and (N). In support of his submissions, the learned Counsel for the petitioner relied upon the decision of the Division Bench of this Court in the case of 'Anil Kesarinath Patil Vs. State of Maharashtra & Ors., (1997 IV LJ 453)'.

4. Learned Counsel for the petitioner has drawn our attention to the affidavit filed on behalf of the detaining Authority where the detaining Authority has dealt with the above contention as raised on behalf of the petitioner. The relevant paragraph being paragraph 6 reads thus:

'(6) With reference to para 8 of the Petition, I say that the Sponsoring Authority had applied for a certified copy of the order dated 19.03.2015 on 20.03.2015 and the same was supplied to the Sponsoring Authority on 20.03.2015. I say that the Sponsoring Authority had been periodically forwarding all the generated documents in the case to the Detaining Authority. The last batch of documents was forwarded to the detaining authority on 16.03.2015. The Detention order was issued on 27.03.2015. The said order dated 19.03.2015 was thereafter forwarded to the Detaining Authority vide letter dated 6.04.2015. Further the order dated 19.03.2015 is only an order granting permission to the detenu to go abroad and has no bearing regarding the smuggling activities of the detenu and as such is not a vital document. In para 42 of the grounds of detention the Detaining Authority has clearly observed 'I am Aware that your passport bearing No.Z2333001 is presently in the custody of DRI, MZU. However, the above paras clearly reveal that you have not only indulged in smuggling gold yourself, but you also roped in your employees, your relatives and persons, who were in need of money, to assist you in smuggling gold from Dubai. You also roped in an Air India cabin crew viz. Shri.Siddhesh Patil to assist you in the smuggling activities. You meticulously planned the whole operation and financed the same. Directions to the carriers and the cabin crew were given by you. The entire operation was planned and executed by you.' From the above it is clear that the Detaining Authority was subjectively satisfied on the basis of documents available on record and relied upon which included the application to go abroad as well as the reply filed by the Sponsoring Authority that were supplied to the detenu, regarding the smuggling activities of the detenu and that to prevent him from indulging in smuggling activities in future the detenu was required to be detained under COFEPOSA and hence, it was not necessary for the Detaining Authority to enquire about the order dated 19.03.2015 as the same would not affect the decision of the Detaining Authority either way.' (emphasis supplied)

On the averments as made in paragraph (6) of the reply affidavit of the detaining Authority, the learned Counsel for the petitioner submits that these averments show complete non application of mind to the order dated 19.3.2015 inasmuch as the order dated 19.3.2015 has been referred to by the detaining Authority as merely an order granting permission to the detenu to go abroad having no bearing regarding smuggling activities of the detenu and thus, not a vital document. Learned Counsel, therefore, submits that this cannot be said to be a subjective satisfaction on the part of the detaining authority and that the detention order is, thus, vitiated and deserves to be quashed and set aside.

5. Mr.Yagnik, the learned Additional Public Prosecutor appearing on behalf of the detaining Authority has supported the order of detention and has placed reliance on the affidavit of Shri.Sanjay Dagadu Khedekar, Deputy Secretary, Home Department, Government of Maharashtra as filed on behalf of the detaining Authority. The learned APP submits that the order dated 19.3.2015 passed by the learned Metropolitan Magistrate granting permission to the detenu to go abroad was not a vital piece of document inasmuch as the detaining Authority has referred to in paragraph 42 of the grounds of detention that the detaining Authority was aware that the passport of the detenu was in the custody of the Sponsoring Authority. He submits that the detenu has not only by himself indulged in smuggling activities but also roped in his employees, relatives and the persons who are in need of money to assist him for smuggling gold from Dubai. That the detenu had also roped in the employee of Air India and meticulously planned the whole operation and financed the same. Therefore, the order dated 19.3.2015 passed by the Metropolitan Magistrate was not a vital document. In support of his submission, learned APP Mr.Yagnik has placed reliance on the decision of the Supreme Court in the case of 'Baby Devassy Chully alias Bobby Vs. Union of India and Others, ((2013)4 SCC 531)'.

6. On examination of the aforesaid facts, we may observe that the learned Counsel for the petitioner is justified in the first submission that the order dated 19.3.2015 passed by the learned Metropolitan Magistrate permitting the petitioner to go abroad was a vital piece of document. The detenu had made an application being Notice No.27 of 2015 dated 9.3.2015 contending that the detenu was an Indian National holding an Indian Passport and was engaged in the business of tours and travels and ticketing, having two firms in the name and style as M/s.Concorde Tour & Travels and M/s.Perfect Travels & Tours, both having their address at Mumbai. The detenu contended that being in the business of tours and travels, he was required to personally take his customers with himself for the purpose of pilgrimage to Karbala and that in the month of February,2015 he had booked tour for 40 passengers of which he was a group leader. The detenu had stated that after he was released on bail, the dates of the tour were changed to 23.3.2015 and return on 1.4.2015 and that he had already made a visa application. It was contended that he was organizing such tours for past many years and that his business reputation and goodwill would be seriously affected if he is not granted permission to travel abroad. The application was supported with details of these 40 passengers and the details of the passport of the detenu as also the ticket details. The Sponsoring Authority namely Directorate of Revenue Intelligence filed a reply dated 13.3.2015 to this application and opposed the said application of the detenu. The reply pointed out that as per the bail order the detenu was required to attend the office of DRI as and when called for investigation which was in progress and that if the detenue is permitted to travel abroad it would adversely affect the investigation. It was contended that the detenu cannot be permitted to go abroad at the cost of ongoing investigation into a huge fraud of smuggling of gold worth crores of rupees. It was also stated that the department has a period of six months to issue show cause notice and the seizure was effected in the case of the detenu on 22.1.2015 and as such there is time till July,2015 to issue show cause notice. The Sponsoring Authority in opposing the application filed on behalf of the detenu also placed on record letters dated 10.3.2015 addressed to Deputy/Assistant Commissioner, Air Intelligence Unit, Goa Customs Commissionerate as also to the Regional Security Head, Western Region, Air India Ltd.. The learned Metropolitan Magistrate allowed the application of the detenu by an order dated 19.3.2015 whereby the detenu was permitted to travel abroad. A perusal of the impugned order and the grounds of the detention on the basis of which the detention order is passed by respondent No.1, it is clear that there is no reference whatsoever either to the application dated 9.3.2015 filed by the detenu seeking permission from the Court of Metropolitan Magistrate to travel abroad nor to the reply as filed on behalf of the Sponsoring Authority or the order dated 19.3.2015 passed by the learned Metropolitan Magistrate granting the application of the detenu whereby the detenu was permitted to travel abroad. There is much substance in the contention as raised on behalf of the petitioner that this order was a vital document in arriving at the subjective satisfaction in passing of detention order. The detaining Authority was furnished with a copy of the application dated 9.3.2015 filed on behalf of the detenu as also the reply to the said application filed on behalf of the Sponsoring Authority. The detaining Authority,however, did not inquire or call for the copy of the order on this application of the detenu. Admittedly, the learned Metropolitan Magistrate passed an order on 19.3.2015 granting the application of the detenu. This order passed by the learned Metropolitan Magistrate cannot be said to be an order without any consequence. The order permitted the detenu to travel abroad. The detaining Authority could not have overlooked that the consequence of such an application as made on behalf of the detenu before the learned Metropolitan Magistrate would have a direct bearing on the proposal as filed by the Sponsoring Authority with the detaining Authority namely to pass an order under Section 3(1) of the COFEPOSA so as to detain the detenu with a view to prevent him from indulging into smuggling activities in future. The learned Metropolitan Magistrate had passed an order dated 19.3.2015 which was much prior to the impugned detention order which was passed on 27.3.2015. When the application of the detenu dated 9.3.2015 and the reply of the Sponsoring Authority dated 13.3.2015 to the said application were forwarded to the detaining Authority by the Sponsoring Authority, in our opinion, there was an onerous obligation on the detaining Authority to inquire into this application and the orders, if any, passed by the learned Metropolitan Magistrate in that regard. The detaining Authority, however, has completely brushed aside, overlooked and have discarded even a consideration to these documents which were forwarded by the Sponsoring Authority, much less applying its mind as to what is the order passed on such application filed by the detenu before the learned Metropolitan Magistrate. It is also clear from the affidavit in reply filed by the detaining Authority that the detaining Authority has not only discarded these documents as non vital but also the detaining Authority has failed to make any inquiry about the order passed on the application dated 9.3.2015 filed by the detenu seeking permission to go abroad. The detaining Authority has also conceded in the reply affidavit that there is no consideration of the documents in arriving at subjective satisfaction which compounds the position that these documents are not considered as vital. The application as filed on behalf of the detenu seeking permission to go abroad, the reply filed to the said application by the detaining Authority and the order passed thereon were vital inasmuch as they had a direct bearing on the activities which were sought to be curbed by the detaining Authority by exercising its power under Section 3(1) of the COFEPOSA. We have, therefore, no hesitation in coming to the conclusion that there is no application of mind on the part of the detaining Authority to these vital documents and on this count the detention order would stand vitiated.

7. Learned Counsel for the petitioner has appropriately placed reliance on the judgment of the Division Bench of this Court in the case 'Anil Kesarinath Patil' (supra). This was the case concerning non placing of application for bail and the order passed on the bail application and granting permission to go abroad pending criminal prosecution before the detaining authority. The case on behalf of the detenu was of non placement of the application for return of passport and permission to go abroad by order dated 19.12.1995. The order of detention was issued without taking into consideration these vital documents. The Division Bench of this Court taking into consideration the law laid down in the case 'Abdul Sathar Ibrahim Manik Vs. Union of India' reported in 'AIR 1991 SC 2261' as also the decision of the Division Bench of Karnataka High Court in the case of 'Noshina G.Bachooali Vs. State of Karnataka' has held that non consideration of the vital documents had vitiated the subjective satisfaction and thus, quashed the order of detention. The Division Bench in paragraphs 5 to 8 has observed thus:

'5. Both the detaining authority in para 11 and the sponsoring authority in para 7 of their reply affidavits respectively have admitted that the aforesaid documents were not placed by the sponsoring authority before the detaining authority. White the detaining authority states that since the said documents were not placed before him the question of considering the said documents by the detaining authority and furnishing a copy thereof to the detenu did not arise, the sponsoring authority has averred that since the detenu did not avail of the said order directing the return of the passport to him and allowing him to go abroad and that as the said document was not vital the same was not placed before the detaining authority. The sponsoring authority also denied that non-consideration of the said document by the detaining authority impaired the satisfaction arrived at by the detaining authority vitiating the order of detention. Both the authorities denied that there was any violation of Article 22(5) of the Constitution of India.

6. In the case of Abdul Sathar Ibrahim Manik v. Union of India reported in AIR 1991 SC 2261, the Supreme Court has held that the order granting bail to the detenu is a vital document which ought to be placed before the detaining authority and non-placement of such vital material documents before the detaining authority would vitiate the order of detention because such material fact is bound to weigh with the satisfaction to be arrived at by the detaining authority one way or the other. In the said decision the Supreme Court after considering various decisions on the point set down six conclusions in para 12 of the judgment. The sixth conclusion arrived at by the Supreme Court is as under:

"(6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vita! ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu."

7. From the list of documents annexed as Annexure 'C' at Serial No. 12 we find that the bail particulars with regard to the detenu were placed before the detaining authority which appear at page 87 of the paper book containing the set of documents served on the detenu. If the application for bail and the order granting bail has necessarily to be placed before the detaining authority and the copies thereof are required to be supplied to the detenu, the application for return of the passport for the purpose of going abroad and the order of the Court directing the return of the passport and permitting the detenu to go abroad are, in our view, relevant material which would be vital for consideration by the detaining authority before arriving at the subjective satisfaction one way or the other whether to clamp down the order of detention on the detenu or not. The order for return of the passport and granting permission for going abroad would amount to the relaxation of the conditions of the original order of release of the detenu on bail as passport was lying with the authorities which had curbed the freedom of the detenu to go abroad. There is a vital difference when the detenu is released on bail on his passport having been surrendered to the authorities, from the situation when the Court directs the return of the passport and permits the detenu to leave the country and go abroad. Like the order granting bail, the permission to go abroad pending prosecution would certainly be required to be considered by the detaining authority before issuing the order of detention. The order of detention in this case was issued much after the said application dated 17th November 1995 was made and the Court allowing the said application on 19th December 1995 as the detention order was passed on 2nd March 1996. "

8. We do not feel that the reliance as placed on behalf of the detaining Authority on the decision of the Supreme Court in the case of 'Baby Devassy Chully alias Bobby' (supra) would be of any assistance to the respondents in the facts of the present case. The grounds on which the detention order was assailed in the said case was that on the date of passing of the detention order on 3.5.2005, the appellant was in jail and in that event there was no compelling necessity to detain him under the COFEPOSA. The detaining Authority failing to take note of the detenu in custody showed non application of mind on the part of the detaining Authority and that the authority had relied upon the retraction statement of the co-accused without adverting to their confession statement also vitiates the detention order. The detaining Authority had contended that all procedural safeguards were strictly adhered to by the detaining Authority and all points raised on behalf of the appellant had been considered and negatived by the High Court and that taking note of the prejudicial activities and with a view to prevent the detenu from involving / abetting in smuggling of goods, the provisions of the COFEPOSA were appropriately invoked. In the facts of the case, the Supreme Court observed that in the impugned grounds of detention the detaining Authority has narrated all the reasons for passing detention order. The argument on behalf of the appellant that on the date of passing of detention order i.e. on 3.5.2005 the detenu was in prison though he was granted bail on 12.4.2005 which he had not availed and continued to be in the prison on the date of the order. The contention of the detenu was that this was not reflected in the detention order and accordingly, vitiated the detention order, principally on the ground of non application of mind. The Supreme Court repelled this contention by observing that though the detenu was granted bail but for the reason best known to him, he did not avail the bail and continued in jail on the date of detention i.e. 3.5.2005. On the facts of the case, it was held that though this aspect was not mentioned in the detention order, however, it was not in dispute that in the grounds of detention which form part of the order of detention dated 3.5.2005 clearly mentioned the details of the bail order dated 12.4.2005 and non availing of bail for the reasons best known to the appellant, on the date of the detention order i.e. 3.5.2005. The Supreme Court in considering the decision in the case of 'Binod Singh Vs. District Magistrate, Dhanbad, ((1986)4 SCC 416)' as relied on behalf of the detaining Authority rejecting the detenu's contention in that regard in paragraph 16 of the decision, held that the fact that the detaining Authority was aware of grant of bail and same was clearly stated in the ground of detention. It was held that the argument on behalf of the appellant as regards non application of mind by not mentioning these facts in the detention order did not vitiate the order.

In paragraph 16 the Supreme C

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ourt observed thus: 16. It is clear that if a person concerned is in custody and there is no imminent possibility of his being released, the rule is that the power of preventive detention should not be exercised. In the case on hand, it is not in dispute that on 12.04.2005 itself, the competent Court has granted bail but the appellant did not avail such benefit. In other words, on the date of the detention order, i.e., 03.05.2005, by virtue of the order granting bail even on 12.04.2005, it would be possible for the detenu to come out without any difficulty. In such circumstances, while reiterating the principle of this Court enunciated in the above decision in Binod Singh case and in view of the fact that the detenu was having the order of bail in his hand, it is presumed that at any moment, it would be possible for him to come out and indulge in prejudicial activities, hence, the said decision is not helpful to the case of the appellant. In view of the above circumstances and of the fact that the Detaining Authority was aware of the grant of bail and clearly stated the same in the grounds of detention, we reject the contra arguments made by the learned counsel for the appellant. On the other hand, we hold that the Detaining Authority was conscious of all relevant aspects and passed the impugned order of detention in order to prevent the appellant from abetting the smuggling of goods in future.' Perusal of the above decision of the Supreme Court clearly shows that same cannot be applied in the facts of the present case. The facts in the present case are quite gross as observed above. There is complete non application of mind on the part of the detaining Authority concerning vital documents namely to the application filed on behalf of the detenu to make a foreign visit, a reply filed of Sponsoring Authority to the said application and the order dated 19.3.2015 passed thereon. In our opinion, these documents were of a nature which could not only have a direct impact on the subjective satisfaction of the detaining authority but also on the order. These documents definitely required a consideration of the detaining authority. Thus in our view for these reasons the detention order is completely vitiated. As we have come to the conclusion that the detention order is vitiated on the ground of non consideration of the vital documents as discussed above and a complete non application of mind in that regard, we have not gone into the details of the other grounds as urged in the petition. 9. In the light of the above discussion, the impugned order of detention cannot be sustained. The Writ Petition deserves to be allowed. In the circumstances we pass the following order: ORDER Rule is made absolute. The order of detention and impugned in this Writ Petition is quashed and set aside. The Detenu shall be released forthwith if not required in any other case.